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` TELECONFERENCE - 2/28/17
` UNITED STATES PATENT AND TRADEMARK OFFICE
` -------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` --------------------
` FMC TECHNOLOGIES, INC.,
` Petitioner,
` v.
` ONESUBSEA IP UK LIMITED,
` Patent Owner.
` --------------------
` Case IPR2016-00328, -00467, -00378, -00495
` U.S. Patent No. 8,540,018
` ---------------------
` (ALL PARTIES APPEARING TELEPHONICALLY)
` ** T E L E C O N F E R E N C E C A L L **
` Tuesday, February 28, 2017
`
` BEFORE: Judge Carl DeFranco
` Judge Josiah Cocks
` Judge Michelle Wormmeester
`
`Reported by:
`Angela M. Shaw-Crockett, CCR, CRR, RMR, LSR
`Job No. 120194
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 1
`FMC vs. OSS
`IPR2016-00495
`
`
`
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` TELECONFERENCE - 2/28/17
` UNITED STATES PATENT AND TRADEMARK OFFICE
` -------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` --------------------
` FMC TECHNOLOGIES, INC.,
` Petitioner,
` v.
` ONESUBSEA IP UK LIMITED,
` Patent Owner.
` --------------------
` Case IPR2016-00328, -00467, -00378, -00495
` U.S. Patent No. 8,540,018
` ---------------------
` (ALL PARTIES APPEARING TELEPHONICALLY)
` ** T E L E C O N F E R E N C E C A L L **
` Tuesday, February 28, 2017
`
` BEFORE: Judge Carl DeFranco
` Judge Josiah Cocks
` Judge Michelle Wormmeester
`
`Reported by:
`Angela M. Shaw-Crockett, CCR, CRR, RMR, LSR
`Job No. 120194
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 1
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 2
`
` February 28, 2017
` 3:02 p.m.
`
`TELECONFERENCE CALL, before Angela M.
`Shaw-Crockett, a Certified Court Reporter,
`Certified Realtime Reporter, Registered Merit
`Reporter and Notary Public of the States of
`New York, New Jersey and Connecticut.
`
`TSG Reporting - Worldwide 877-702-9580
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`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 3
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` TELECONFERENCE - 2/28/17
` A P P E A R A N C E S:
`(ALL PARTIES APPEARING TELEPHONICALLY)
`
`OBLON McCLELLAND MAIER & NEUSTADT
` Attorneys for the Patent Owner
` 1940 Duke Street
` Alexandria, Virginia 22314
`
`BY: MICHAEL KIKLIS, ESQ.
` CHRISTOPHER RICCIUTI, ESQ.
` KATHERINE CAPPAERT, ESQ.
`
`FISH & RICHARDSON
` Attorneys for the Petitioner
` 1717 Main Street
` Dallas, Texas 75201
`
`BY: JOSHUA GRISWOLD, ESQ.
` BRET WINTERLE, ESQ.
` CRAIG DEUTSCH, ESQ.
`
`ALSO PRESENT:
` Paula Whitten-Doolen, Schlumberger
` Rodney Warfford
` Gina Slabbaert
`
` ** ** **
`
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`FMC vs. OSS
`IPR2016-00495
`
`
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` TELECONFERENCE - 2/28/17
` (A discussion was held off the record.)
` JUDGE DeFRANCO: Okay. Welcome to you
`all. I assume there's not a court reporter on
`the line?
` THE COURT REPORTER: Yes, yes, Judge. My
`name is Angie Shaw and I am the court reporter
`for today. I wasn't sure if you needed all of
`that on the record? If so, if you want to have
`the appearances announced again, we can do
`that. I didn't know you were going on the
`record immediately.
` JUDGE DeFRANCO: Yes, Ms. Shaw. We do
`need all of the appearances on the record. Why
`don't you go ahead, Mr. Griswold, and repeat
`your appearance.
` MR. GRISWOLD: Sure. This is Joshua
`Griswold, Bret Winterle and Craig Deutsch, all
`of record for the petitioner, FMCTI.
` JUDGE DeFRANCO: And Patent owner?
` MR. KIKLIS: Yes, Mike Kiklis, Christopher
`Ricciuti and Kate Cappaert, from Oblon for
`Patent owner. And with us, in-house counsel
`Paul Whitten-Doolen and Rodney Warfford and
`their paralegal Gina Slabbaert.
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 4
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 5
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` JUDGE DeFRANCO: And like I said before,
`this is Judge DeFranco. And with me are Judges
`Cocks and Wormmeester. And this is a
`conference call in IPR's 2016-328, -378, -467
`and -495.
` So I understand from the email requesting
`this call that I believe it's Patent owner --
`Patent owner has two requests and the first
`being they'd like to file or authorization to
`file a motion to strike some alleged new
`arguments that purportedly appear in the
`petitioner's reply brief.
` And then Patent owner's second request is
`authorization to file a surreply to address
`petitioner's allegation in their reply that
`Patent owner mischaracterizes or makes some
`false claims about the evidence.
` So why don't we deal with this second
`issue first and see if, maybe, we can dispose
`of it relatively quickly.
` So I understand it has to do with Patent
`owner's -- Patent owner wants to file a
`surreply to address these allegations that
`petitioner purportedly made about Patent owner
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 5
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 6
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` TELECONFERENCE - 2/28/17
`mischaracterizing the evidence.
` So, Mr. Kiklis, let me start with you.
` Would you agree that the board can deal
`with that -- that we deal every day with that
`quandary, in other words, deciding whether a
`party has mischaracterized the evidence or put
`some sort of improper spin on that evidence?
` MR. KIKLIS: I would agree, your Honor,
`but in this situation, they took a step
`further. Not only did they say that we
`mischaracterized things, by they used the word
`"false." And when you raise the word "false,"
`then that comes with it intent and bad intent.
` And also, your Honor, I would agree with
`you that the board is more than capable of
`digging into the record and seeing who's
`actually reflecting the record more correctly.
`However, I'm also familiar with the board's
`practice of permitting replies, surreplies in
`this situation so that party could set the
`record straight.
` I would mention one other thing, your
`Honor, besides the -- to address those
`accusations of "false claims," which the
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 6
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 7
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`petitioner has said in their reply that we did,
`which is not true, we would also use the
`surreply to address a prior art reference that
`they dumped into the record for the IPR, for
`the '018 Patent. They --
` JUDGE DeFRANCO: Okay, Mr. Kiklis, let me
`interrupt. Let's take this one at a time
`first, because I think that allegedly new
`reference that's in the -- that may be in the
`'018 case would really go to your second
`request. But let's deal first with this
`surreply on these accusations of false or false
`claims or mischaracterization of the evidence.
` From my reading, don't you think
`petitioner is just using that term loosely?
`It's not like they're trying to get sanctions
`in this case for some sort of misrepresentation
`you've made. They don't say you misrepresent.
`They just talk about mischaracterizing the
`evidence or putting a different spin on it.
` MR. KIKLIS: No, your Honor. They used
`the word "false." We "falsely allege." Those
`are their words. "Falsely allege," "falsely
`claim."
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 7
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 8
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` JUDGE DeFRANCO: But I believe -- I
`believe it's a loose interpretation of the word
`"false." I think you made a little bit too
`much to heart.
` MR. KIKLIS: Your Honor, nevertheless --
` JUDGE DeFRANCO: I don't think they're
`calling -- they're not calling your conduct
`sanctionable. They never used that term,
`correct?
` MR. KIKLIS: I don't believe that they
`are, your Honor. We're just simply looking for
`a surreply to set the record straight. And I
`think that's certainly a reasonable request and
`it's been granted in other situations in cases
`in which I've been involved. That's simply
`what we're asking for.
` JUDGE DeFRANCO: Well, you don't think we
`can discern where the record -- where they've
`taken too much leeway here?
` MR. KIKLIS: I do think you are, your
`Honor, but we'd like to put our arguments in
`writing.
` JUDGE DeFRANCO: I just don't understand
`how more briefing is going to help our job in
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 8
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 9
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`this particular case other than just pointing
`out the same statements that you already
`pointed out in your email.
` MR. KIKLIS: Well, we could also point
`out, you know, the --
` JUDGE DeFRANCO: Because I can do a word
`search about false claims and say, okay --
` MR. KIKLIS: With the word "false."
` JUDGE DeFRANCO: Right.
` MR. KIKLIS: We simply would want to set
`the record straight, that's all, and address
`their statements in that regard.
` JUDGE DeFRANCO: Okay. Let's move on to
`this other issue, then, that's raised in the
`email. And this is the issue of petitioner's
`reply brief and whether it raises new arguments
`that are claim constructions for the first
`time, I believe, as you put it.
` MR. KIKLIS: Well, your Honor, before we
`get there, the surreply [sic] was another
`reason for the surreply and that was for --
`because in the '018 case, they introduced a
`reference, "Anderson," to bolster one of the
`'103 arguments and we wanted to respond to that
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 9
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 10
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`in the surreply, as well.
` JUDGE DeFRANCO: Okay.
` MR. KIKLIS: And by the way, we're simply
`requesting a five-page surreply, which is, you
`know, the board's practice and nothing more
`than that, breach of the cases.
` MR. GRISWOLD: Your Honor, this is Josh
`Griswold. I don't think that the request for
`the surreply went to the allegedly new
`reference. I think that was addressed under
`their motion to strike.
` JUDGE DeFRANCO: Well, I believe what
`Mr. Kiklis is doing is he's amending that email
`a little bit.
` MR. GRISWOLD: Sure.
` JUDGE DeFRANCO: But let's deal with it.
`We'll take that one under consideration.
` MR. KIKLIS: Your Honor, I'm not sure -- I
`don't have the email in front of me but we
`would want to address the Anderson reference in
`the surreply.
` JUDGE DeFRANCO: Let's talk about that
`because I really think that that's directed to
`the first request that you make in your email
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 10
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 11
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`that's dated February 22nd, 2017.
` So in that first request, you want to file
`a motion to strike any new arguments that were
`presented in petitioner's reply, which I assume
`includes that Anderson reference?
` MR. KIKLIS: Correct. And let me just
`kind of give you the background, your Honor.
` The reason for this, is this is probably
`the most egregious case I've ever seen where
`what the petitioner did in their petition, is
`they didn't really advance any
`claim-construction arguments. Rather what they
`did was they compared the prior art to our
`infringement contentions at the district court.
`That's what they did in their petition.
` And what we set forth in our Patent owner
`response for affirmative constructions for half
`a dozen claim terms or so, which are pivotal to
`the case.
` What the patent --
` JUDGE DeFRANCO: Let me interrupt,
`Mr. Kiklis.
` MR. KIKLIS: Yes.
` JUDGE DeFRANCO: I think what actually
`
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`OSS Exhibit 2025, pg. 11
`FMC vs. OSS
`IPR2016-00495
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`
`
`Page 12
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`happened was the petitioner just incorporated
`those constructions. They're the other version
`of those constructions in their application of
`the arts.
` So they did not have a section, per se, on
`claim construction. What I believe is they --
`and please, Mr. Griswold, correct me if I'm
`wrong, but I believe that they were arguing
`plain and ordinary meaning for the terms and
`then applying that plain and ordinary meaning
`when they applied the art.
` MR. GRISWOLD: Yes, your Honor. We
`applied plain and ordinary meaning. And I
`think in a few instances we cited to their
`contentions as confirming that they believed
`the plain and ordinary meaning was consistent
`with our application of plain and ordinary
`meaning.
` JUDGE DeFRANCO: Right. So, Mr. Kiklis,
`I'm not quite sure that they didn't offer some
`sort of construction on these terms.
` MR. KIKLIS: Well, your Honor, I think
`what you just said is correct. There is -- if
`you look at each petition, there's a couple of
`
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`OSS Exhibit 2025, pg. 12
`FMC vs. OSS
`IPR2016-00495
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`
`
`Page 13
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`throw-away paragraphs in their section entitled
`"claim construction."
` And in that section, they say, "Broadest
`reasonable interpretation applies here." And
`they also reserve the right to change the
`district court, whatever they want to do. And
`then in the analysis, all they do is compare
`the infringement contentions to the prior art.
` What there're doing now is coming forth
`with affirmative claim constructions for terms.
`And what makes this really egregious, your
`Honor, is that the district court, those are
`positions they clearly knew that these terms
`were going to be in dispute in their Rule 4-1
`filing, for example, months before they filed
`their petitions --
` JUDGE DeFRANCO: Let me ask, Mr. Kiklis.
`Did the district court interpret any terms in
`this case?
` MR. KIKLIS: Yes. And we submitted that
`with our Patent owner response.
` JUDGE DeFRANCO: You did, okay.
` MR. KIKLIS: But, your Honor, what I'm
`trying to say is that in the petition, they
`
`TSG Reporting - Worldwide 877-702-9580
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`OSS Exhibit 2025, pg. 13
`FMC vs. OSS
`IPR2016-00495
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`
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`Page 14
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`didn't cite anything, they didn't construe any
`terms even though they told the district court
`that somewhere between 15 to 27 Patent claim
`terms were in dispute and should be construed.
`They said that at the district court and then
`in conjunction with the filing of the petition
`right around the same time of the filing of the
`'018 petition and weeks before the other
`petitions. They proffered over 100 pages of
`claim constructions to the district court.
` My point is, your Honor, you're not
`allowed to lie in weight in these proceedings.
` JUDGE DeFRANCO: I understand that, Mr.
`Kiklis. I totally understand the sandbagging
`argument.
` So let me ask, when did the district court
`put out their construction?
` MR. KIKLIS: Their claim construction, I
`believe, was issued over the summer and we
`included that with our Patent owner response.
`But they had clearly positions that they should
`have told this board about and they should have
`gone on the record in these proceedings before
`we responded, not after.
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 14
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 15
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` JUDGE DeFRANCO: Okay. But they did not
`have those constructions at the time they filed
`the petitions, correct?
` MR. KIKLIS: No, but they had their
`position, your Honor. That's the point.
` JUDGE DeFRANCO: Did the board issue any
`claim constructions in this case in any of the
`DIs?
` MR. KIKLIS: I don't believe -- in the
`institution decisions, I think --
` JUDGE DeFRANCO: I'm sorry, I just --
` MR. KIKLIS: In the institution decision,
`I believe the board bypassed conduit. I don't
`recall there being any specific constructions
`beyond that, but I might be wrong.
` But none of the other terms like Diverter
`Assembly or Christmas Tree or what have you,
`which is really at the center of this dispute.
`I don't believe the board construed any of
`those.
` JUDGE DeFRANCO: Okay. So I'm looking at
`your Patent owner response and -- just the
`table of contents very quickly and I see that
`it has six different terms that you're offering
`
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`OSS Exhibit 2025, pg. 15
`FMC vs. OSS
`IPR2016-00495
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`
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`Page 16
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`a construction for.
` And then I'm also looking at petitioner's
`reply and I believe that they are addressing at
`least five of those terms anyway; am I correct?
` MR. KIKLIS: They are addressing them by
`introducing new evidence, for example,
`dictionary definitions as well as a video of
`the accused product in this case which they had
`far before their petition was even filed.
` JUDGE DeFRANCO: So they introduce a new
`video with --
` MR. KIKLIS: With their reply.
` JUDGE DeFRANCO: For the first time?
` MR. KIKLIS: Yes.
` JUDGE DeFRANCO: That video has never been
`offered for?
` MR. KIKLIS: Never. And as well as these
`dictionary definitions.
` JUDGE DeFRANCO: Well, I understand
`dictionary definitions.
` So you offered up your constructions in
`your Patent owner response and Petitioner
`addresses them in their reply. It looks like
`they're all the same terms.
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 16
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 17
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` So what is the remedy that you're
`proposing here?
` MR. KIKLIS: We would propose to move to
`strike them. They should have come forward.
`They knew that Diverter Assembly, Flowline,
`Christmas Tree, these are the important terms.
`They knew of this ahead of time. They should
`have proposed a construction. We would move to
`strike.
` And in the alternative, if the board
`thought that was a dramatic request, then we
`would request a surreply to address that.
` But under these circumstances, your Honor,
`and I've never requested a motion to strike
`before, in these circumstances where they knew
`of it, they told the district court, they had
`their positions, they didn't tell this board
`and they didn't go on the record in this case
`before the reply. I think they should be
`precluded from doing so now.
` JUDGE DeFRANCO: But you understand that
`we have to address the construction of all of
`those terms?
` MR. KIKLIS: Yes, your Honor, I do.
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 17
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 18
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` JUDGE DeFRANCO: Okay. Petitioner, do you
`have anything to add?
` MR. GRISWOLD: I do.
` JUDGE DeFRANCO: I'd like you to hone in
`on the video.
` MR. GRISWOLD: Yes. So the video, in
`fact, is their video. It was an additional
`exhibit to the infringement contentions that we
`had supplied with our petitions.
` We had supplied it because --
` JUDGE DeFRANCO: So is it your position --
` THE COURT REPORTER: I'm sorry. One at a
`time.
` MR. GRISWOLD: Go ahead.
` JUDGE DeFRANCO: So, Mr. Griswold, is it
`your position then that you're submitting a
`video to show some sort of inconsistency in
`their construction?
` MR. GRISWOLD: They assert the
`infringement contentions are preliminary and
`they did so -- I think we had a conversation a
`couple of months back around the time of the
`depos. They also indicated they believed the
`contentions were preliminary.
`
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`
`OSS Exhibit 2025, pg. 18
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 19
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` TELECONFERENCE - 2/28/17
` And so we submitted the additional
`exhibits that kind of support the allegations
`that they made in the contentions because we --
`while the contentions may be preliminary with
`respect to their understanding of the product,
`we don't think that OneSubsea, a subsidiary of
`Schlumberger, who now has two in-house counsel
`and three counsel on the phone were
`ill-represented and --
` JUDGE DeFRANCO: Let me ask, Mr. Griswold.
`Help me to recall what happened during the
`deposition.
` For some reason, it's my recollection that
`we did not permit you to ask questions on that
`subject, meaning infringement; is that correct?
` MR. GRISWOLD: That is correct, yes.
` JUDGE DeFRANCO: And so the video has to
`do with the infringement contentions?
` MR. GRISWOLD: The video has to do with
`infringement contentions, yes.
` JUDGE DeFRANCO: So why would we allow it
`in now if we didn't allow it in then?
` MR. GRISWOLD: I think -- and you can
`correct me if I'm wrong -- a significant factor
`
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`
`OSS Exhibit 2025, pg. 19
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 20
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` TELECONFERENCE - 2/28/17
`to not letting us question the expert on
`infringement contentions is what's -- that he
`was not involved in the production of those
`infringement contentions. He came about in
`claim construction after the contentions had
`been prepared and served.
` And the level that I think that we're
`relying on the video is nominal. When you have
`the chance to read the replies, you'll see that
`we've just basically said we don't believe the
`contentions are preliminary as to a person of
`ordinary skill in the art's understanding of
`the claim terms that may be preliminary with
`respect to the -- to their understanding of the
`accused device. And we're supplying the video
`so that the PTAB can make an evaluation as to
`whether -- what was a reasonableness
`understanding of the accused device.
` It's not as though -- I think there's
`maybe one citation to the videos in each of the
`replies and it's not a protracted long
`paragraph.
` In other words, we wanted to let you guys
`have the full record so that you could have
`
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`
`OSS Exhibit 2025, pg. 20
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 21
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` TELECONFERENCE - 2/28/17
`more information rather than an incomplete
`picture in making your evaluation.
` JUDGE DeFRANCO: Okay.
` MR. KIKLIS: May I respond, your Honor?
` JUDGE DeFRANCO: Yes, I'd like you to
`address that Anderson reference again, please.
` MR. KIKLIS: Oh, sure. Well, first of
`all, in terms of infringement contentions,
`there's at least one case that I've seen
`recently where the board just said that
`infringement contentions are too speculative or
`premature to even be considered as part of
`this. I don't have the case cite in front of
`me. I just remember reading that recently.
` And so I think it is appropriate for this
`board, this panel, to not consider the
`infringement contentions and take the claim
`terms for what they mean straight up based upon
`the intrinsic evidence which we have proffered.
` Now, in terms of the Anderson reference,
`the Anderson reference, they are using to
`bolster a '103 -- their '103 case in the '018.
`The cites for that case by the way is Mentor
`Graphics Corp. v. Synopsis, Case
`
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`
`OSS Exhibit 2025, pg. 21
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 22
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` TELECONFERENCE - 2/28/17
`IPR-2014-00287, Paper 17 at 4. And that's from
`August 1, 2014.
` With respect to the Anderson reference in
`the '018 reply, the Anderson reference is a
`patent that they cited in another petition. So
`they were aware of it. They knew of it at the
`time they filed their petition and now they
`want to bring this into the '018 case to
`bolster their '103 argument. That's what
`that's all about, your Honor.
` JUDGE DeFRANCO: Okay. And where is that
`raised in the reply?
` MR. KIKLIS: It's raised in the '018
`reply. If you search on Exhibit 1025, you'll
`get right to it.
` MR. GRISWOLD: Your Honor, this is Josh
`Griswold. It's on page 29 of the reply.
` JUDGE DeFRANCO: Okay, Mr. Griswold. Why
`do you raise Anderson for the first time in
`this petition?
` MR. GRISWOLD: So Anderson, as you
`appreciate, is a reference that was -- that's
`used in several of the IPRs and they have
`specifically attacked our culmination of
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 22
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 23
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` TELECONFERENCE - 2/28/17
`Gatherer and Fenton [sic], explaining that
`Gatherer -- I think I misspoke. It's Gatherer
`and Fisher, I'm sorry.
` Explaining that Gatherer's module, the
`component that's attached, was only attached in
`a certain context and it wasn't attached to
`trees. And that one of ordinary skill in the
`art wouldn't have attached these things to
`trees.
` And we point out some citations and gather
`to say it can be attached to a number of
`different things, including just about anything
`you want. And we cite the -- one sentence we
`cite Anderson as the use of similar packages or
`specifically widely known in the art FMCE 1025
`describing use of its module with a
`conventional Christmas Tree.
` JUDGE DeFRANCO: Okay. Did you say that
`that's the only citation or use of the Anderson
`reference in your reply?
` MR. GRISWOLD: I believe that is. That's
`the only one I could find with the word search
`and that was my recollection from drafting the
`reply.
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 23
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 24
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` TELECONFERENCE - 2/28/17
` And what's unique about this is Gatherer
`and Anderson show very similar systems. And so
`for them to say that a module -- in fact,
`they're both owned by FMC. So to say that a
`module like that wasn't used on trees, knowing
`of the reference was wholly inconsistent with
`the record. So this is backup to our
`explanation of why one would attach Gatherer's
`module to a tree.
` JUDGE DeFRANCO: Right. I understand
`you're using it as background knowledge in the
`art to show that.
` Mr. Kiklis, I believe that's permissible.
` MR. KIKLIS: Well, here, your Honor --
` JUDGE DeFRANCO: They're not raising a new
`ground here. They're just raising it just
`so -- general state of the art which we're
`required to consider.
` MR. KIKLIS: Yes, you are, your Honor.
`There's no -- the argument is that they're
`adding a reference at this late stage and some
`things that should have been in the petition.
` The fine line here is the difference
`between responding to our arguments versus
`
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`
`OSS Exhibit 2025, pg. 24
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 25
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` TELECONFERENCE - 2/28/17
`something that should have been in the petition
`to begin with. And I think this crosses the
`line. And at a minimum, we're requesting a
`surreply to respond.
` JUDGE DeFRANCO: Okay. And you said
`five-page surreply.
` MR. KIKLIS: A five-page surreply for each
`case, your Honor, is what we'd be requesting.
` JUDGE DeFRANCO: And how long would you
`need to draft that if you were to submit it?
` MR. KIKLIS: I imagine ten days if we're
`authorized to receive documents --
` JUDGE DeFRANCO: What's the date for the
`hearing in this case? Isn't it the end of
`March?
` MR. KIKLIS: It is.
` JUDGE DeFRANCO: March, what date?
` MR. KIKLIS: 27th, I believe.
` MS. WHITTEN-DOOLEN: 29th.
` JUDGE DeFRANCO: Okay, March 29th?
` MR. KIKLIS: Yes, the 29th, your Honor.
`I'm sorry. I misspoke.
` JUDGE DeFRANCO: Okay. And you would like
`until when, what date to submit this?
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 25
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 26
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` TELECONFERENCE - 2/28/17
` MR. KIKLIS: Ten days. If the board
`needs -- if the panel needs more time with
`it --
` JUDGE DeFRANCO: By Friday, March 10th?
` MR. KIKLIS: Yes.
` JUDGE DeFRANCO: I need to bring up my
`calendar here, hold on.
` Mr. Griswold, do you have any objection to
`that? Because I'm actually inclined to -- and
`the panel is inclined to entertain a five-page
`surreply here on these issues.
` It does look like you raised some things
`here that arguably could be interpreted yes,
`you responding to Patent owner's argument or
`maybe that they were not necessarily
`anticipated-type arguments the patent owner
`made.
` Or in the case of Anderson, you have
`raised it for the first time and I understand
`it's strictly as further evidence of knowledge
`in the art.
` But nonetheless, rather than strike these
`particular items, the panel would be inclined
`to entertain a five-page surreply.
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 26
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 27
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` Do you have any objection, Mr. Griswold?
` MR. GRISWOLD: Yes. So, your Honor, my
`position is different on the different things.
`So Mr. Kiklis has asked for surreplies on all
`of the IPRs. The surreplies are specifically
`to set the record straight about who has
`correctly interpreted the various citations.
` I would oppose that because I feel the
`panel is -- as you rightly observed -- you deal
`with this all day long. You can read the
`different citations the parties have offered up
`and I'm not clear what additional argument
`would need to be made one way or another.
` With respect to Anderson as new, I believe
`that it is -- that it's responsive because they
`have -- in essence, we're holding by our
`argument that it would have been obvious to
`apply Gatherer's module to Fisher's tree and
`cited evidence to that end in our petition and
`also in our reply. Anderson is corroborating
`that. So it's new in that sense.
` I would be opposed to a surreply but
`I'm -- I'm sympathetic to the panel's concern
`that new argument that hasn't been addressed or
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 27
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 28
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`the patent owner hasn't had an opportunity to
`address is reversible. And so I would propose
`given that we have identified one line in the
`reply, that they have one page to address that
`one line. I think five pages is
`disproportionate.
` JUDGE DeFRANCO: And those are your only
`objections to this?
` MR. GRISWOLD: With respect to surreplies,
`yes.
` With respect to the claim construction
`issues, I have more to say on that if you'd
`like to move on?
` JUDGE DeFRANCO: No, because the claim
`construction issue would be tied in with the
`five-page surreply.
` MR. GRISWOLD: Okay.
` JUDGE DeFRANCO: So why don't you go ahead
`and state whatever objections you may have.
` MR. GRISWOLD: Yes. With respect to the
`claim construction, we followed what's outlined
`in the trial practice guide that says, It's
`sufficient for a party to provide a simple
`statement that claim terms are to be given
`
`TSG Reporting - Worldwide 877-702-9580
`
`OSS Exhibit 2025, pg. 28
`FMC vs. OSS
`IPR2016-00495
`
`
`
`Page 29
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`their broadest reasonable interpretation.
` And where a party believes that a specific
`term has a meaning other than its plain
`meaning, the party should provide a statement
`identifying the proposed construction.
` We applied plain meaning in the petition.
`They have responded with much narrower
`constructions that are inconsistent with the
`litigation they take. And notably, the claim
`construction that went down this past summer,
`that happened after we had filed our petition
`and before -- OneSubsea had filed their patent
`owner's responses, it's consistent with the
`positions that we've taken in our petition.
`And the only new information that we supplied
`in this -- in our Patent owner's replies are
`those
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